I. The law regarding the fair-cross-section guarantee

A. Overview

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants an impartial jury, and the Supreme Court has held that “an essential component” of this guarantee is the “selection of a [trial] jury from a representative cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 528 (1975). The Supreme Court explained that “the broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.” Id. at 530-31. The Supreme Court also made it clear that not only must juries in criminal trials reflect a fair cross-section of the community, but, so too, must civil juries and grand juries. Id.

The Supreme Court further explored the representative-cross-section guarantee a few years later, in Duren v. Missouri, 439 U.S. 357 (1979), where it provided a framework for determining whether a fair cross-section claim has been established. The Duren framework requires the party making the fair-cross-section challenge to satisfy each of three prongs in order to establish his or her prima facie case. To make out the prima facie case, the party must show “[1] that the group alleged to be excluded is a ‘distinctive’ group in the community; [2] that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and [3] that this underrepresentation is due to the systematic exclusion of the group in the jury-selection process.” Id. Then, if the prima facie case has been established, the burden then shifts to the other party to prove “that a significant state interest [is] manifestly and primarily advanced by those aspects of the jury-selection process . . . that result in the disproportionate exclusion of a distinctive group.” Id. at 367-68. Once the prima facie case has been established, the burden shifts to the other party to prove a compelling justification for the exclusion, and recent cases make clear that states retain broad discretion to establish qualification, exemption, and excusal criteria. See, e.g., Berghuis v. Smith, 559 U.S. 314 (2010).

Before exploring in greater depth the three prongs required by Duren for establishing the prima facie case, two points are worth noting regarding fair-cross-section challenges. First, a party that brings a fair-cross-section challenge under the Sixth Amendment need not be a member of the excluded group to have standing. Taylor, 419 U.S. 522 (male defendant can challenge exclusion of female jurors); Holland v. Illinois, 493 U.S. 474 (1990) (white defendant can challenge exclusion of black jurors). Second, unlike in equal-protection claims, parties raising fair-cross-section challenges need not prove discriminatory purpose. United States v. Green, 389 F. Supp. 2d 29, 51 (D. Mass. 2005). As one court stated, “An Equal Protection challenge concerns the process of selecting jurors, or the allegation that selection decisions were made with discriminatory intent. The Sixth Amendment, on the other hand, is concerned with impact, or the systematic exclusion of a cognizable group regardless of how benevolent the reasons. It looks to discriminatory effects, while the Equal Protection clause looks to discriminatory purposes. Even practices that are race-neutral but have a disparate impact on the representation of a cognizable class in the jury venire fit within the Sixth Amendment’s protections, while they would not be cognizable under the Equal Protection clause.” Id.

B. Exploring the 3 prongs of the Duren test


  1. First prong of the Duren test

The first prong of the Duren test requires that the party making the challenge show “that the group alleged to be excluded is a ‘distinctive’ group in the community.” Duren, 439 U.S. 357. “It is fairly well-settled that the first prong of Duren refers to gender, race, and ethnicity, or in rare circumstances, religious affiliation and national origin.” Paula Hannaford-Agor, Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded, 59 Drake L. Rev. 761, 763 (2011). Courts have, however, differed in terms of what types of groups they have found to be “distinctive” for the purposes of Duren’s first prong. Among the groups that have sometimes found to be “distinctive” are Asians, Jews, Native Americans, and homosexuals. See Nina Chernoff & Joseph B. Kadane, The 16 Things Every Defense Attorney Should Know about Fair Cross-Section Challenges, The Champion, Dec. 2013. One state Supreme Court reasoned that three factors should be considered in determining whether a group is “distinctive” for the purposes of the Duren test: “First, there must be some quality or attribute in existence which defines or limits the membership of the alleged group; second, there must be a cohesiveness of attitudes, ideas, or experiences which serves to distinguish the purported group from the general social milieu; and third, a community of interest must be present within the alleged group which may not be represented by other segments of the populace.” State v. Price, 301 N.C. 437, 445-46 (1980).

  1. Second prong of the Duren test

The second prong of the Duren test requires that the party making the challenge show “that the representation of [the] group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community.” Duren, 439 U.S. 357. In exploring the second prong, the question thus is not about the makeup of the jury panel itself, but, rather, about the representativeness of the sources from which the jurors are selected. See Berghuis, 559 U.S. 314 (the fair-cross-section guarantee is of a “jury drawn from sources reflecting a cross section of the community”).

The focus of the second prong on the source of the venire means that the prong applies to all stages of the process of obtaining potential jurors up until the point at which the group of potential jurors are sent into the courtroom for voir dire examination. Thus, a party making a fair-cross-section challenge can show a violation of the second prong in different possible stages. For one, a party can challenge the representativeness of the groups of potential jurors summoned to the courthouse for jury service. Duren, 439 U.S. at 367. So, too, however, can a party challenge representativeness based on the numbers in the group that actually showed up to the courthouse for jury service. Id. Additionally, one can challenge representativeness at any other stage before the venire begins to undergo voir dire. Id.

As for whether underrepresentation must happen over a period of time or whether it is sufficient for there to be underrepresentation in the case of the party bringing the challenge, courts are divided. See, e.g., People v. Bryant, 822 N.W.2d 124 (Mich. 2012) (holding that Duren requires evidence of underrepresentation over time); State v. Blakeney, 352 N.C. 287, 297 (2000) (holding that the second prong of the Duren test requires a determination of whether representation in the defendant’s venire was fair and reasonable). Further, other courts have held that composition of the venire in the challenger’s case is not even relevant to the challenge and that only relevant is the question of whether there has been underrepresentation over time. Ambrose v. Booker, 683 F.3d 638 (6th Cir. 2012).

In order to satisfy the second prong of the Duren test, the challenger will need to provide evidence comparing the number of members of the distinctive group in the community to the number at one of the stages of the creation of the venire. While the calculation of the number of members of the group at the stages of creation of the venire is likely fairly straightforward, it is less clear how the numbers in the community should be calculated. It has been held that courts can use census data and do not need to determine the numbers of  those eligible for jury service. See, e.g., Duren, 439 U.S. at 365. Voting-age population data is also permissible—though it is not necessary. See U.S. v. Rodriguez-Lara, 421 F.3d 932, 943 n.9 (9th Cir. 2005). Parties bringing the challenge can also provide evidence tending to show that the census undercounts certain minorities. Price, 301 N.C. 437.

The next key question is how to define “underrepresentation.” There is no single approach to this question required by Duren, and different courts have taken different approaches to this question—thus making these determinations on a case-by-case basis. Indeed, in Berghuis v. Smith, 559 U.S. at 329, the Supreme Court held that there is no perfect test for determining underrepresentation. And the Berghuis Court approved of a Michigan Supreme Court holding that stated that “[p]rovided . . . the parties proffer sufficient evidence . . . the results of all of the tests [of underrepresentation, including absolute disparity, comparative disparity, among others,] should be considered.” Id. The absolute disparity test asks what the difference is between the percentage of the population that are members of the group and the percentage of individuals at the stage in question of the jury formation process that are members of the group. For example, if women make up 50% of the community population but make up 10% of the jury pool at the stage of the jury formation process being explored, the absolute disparity would be 40%. The comparative disparity test asks by what percentage of the community percentage the jury pool at the stage of the jury formation process being explored has been lowered. Accordingly, the comparative disparity in the hypothetical case just given would be 80%.

Not only is there no single approach taken by courts in terms of whether to use absolute disparity or comparative disparity, but, so too, there is no uniformity regarding what the thresholds of permissibility are for each of the methods. The following, however, gives a ballpark sense of where these thresholds tend to fall:

“Generally speaking . . . an absolute disparity between the percentage of a group in the population and its percentage in the jury pool of less than 5% is almost always constitutional; an absolute disparity between 5% and 10% is usually constitutional; and an absolute disparity of over 10% is probably unconstitutional.” Smith v. State, 571 S.E.2d 740, 745 (Ga. 2002).

“Like absolute disparity, few courts have articulated the degree of underrepresentation that reflects a constitutional violation using [comparative disparity]. Most courts that have discussed this issue cite values of 50% comparative disparity or higher to establish a fair cross section claim.” Hannaford-Agor, at 768-69.

  1. Third prong of the Duren test

The third prong of the Duren test requires that the party making the challenge show “that [the] underrepresentation is due to the systematic exclusion of the group in the jury-selection process.” Duren, 439 U.S. at 368. Underrepresentation is “systematic” if it was an “inherent” product of the jury mechanism that the court used or if it was caused by a rule or practice that a state actor controlled. Id. at 366.

Although the underrepresentation must be caused by the jury mechanism or a rule or practice that a state actor controls, it need not be the case that the challenger identifies which specific mechanism caused the underrepresentation. In other words, as long as it has been shown that each of the possibilities, among which the actual cause is one, all satisfy the jury-mechanism-or-state-actor-control rule, then the challenger has established the third prong of the Duren test. Duren, 439 U.S. at 367. The Duren court held that, although the defendant didn’t prove which policy was causing the underrepresentation of women, the underrepresentation of women “was quite obviously due to the system by which juries were selected. . .. Women were therefore systematically underrepresented . . ..” Id. Accordingly, the Berghuis court stated that a challenger can satisfy the third Duren prong by offering evidence that rules out alternative, non-systematic explanations for the underrepresentation. Berghuis, 559 U.S at 331. Similarly, in addition to not needing to identify the specific cause of the underrepresentation, the challenger also is not required by Duren or Berghuis to determine the exact stage of the jury formation process that has caused the underrepresentation. See Chernoff, at 14, 20 n.112.

Interesting questions exist regarding whether underrepresentation caused by socioeconomic factors—such as excusal rates or non-response rates that are a function of poverty and that have disparate rates of affecting different racial groups—satisfy the third Duren prong. Courts have come to different conclusions on this question, and when the Supreme Court held, in Berghuis, that the cross-section claim did not violate clearly established federal law, it did not rule on whether underrepresentation caused by socioeconomic factors could satisfy the third Duren prong. Berghuis, 559 U.S. 314.